Bank holidays: How are they created and changed?

Monday (26 August) is the Summer bank holiday in England, Wales and Northern Ireland. But as everyone prepares for this long weekend, a future bank holiday has sparked attention.

Back in June, the Government announced it will move the Early May bank holiday in 2020 from Monday (4 May) to Friday (8 May) to mark the 75th anniversary of Victory in Europe (VE) Day. This has caused some controversy, with questions raised over whether there should have been more notice, or whether VE Day should have been marked with an extra bank holiday.

This Insight explores what bank holidays are, how they
can be changed and what they mean for workers.

What’s a bank holiday and what’s a public holiday?

The phrase ‘bank holiday’ is usually used to refer to
the certain number of public holidays we get each year (eight if you are in
England and Wales, nine in Scotland, ten in Northern Ireland). Legally, the
picture is a bit more complex.

In law, there is a distinction between ‘bank’ holidays and ‘public’ holidays. Bank holidays are those created under the Banking and Financial Dealings Act 1971. They include days that are specifically listed in the Act as well as days that are proclaimed by the Queen (Royal Proclamations are usually published each summer in The Gazette). Public holidays are common law holidays in England, Wales and Northern Ireland and include Christmas Day and Good Friday. The term ‘public holiday’ has a separate meaning in Scotland where it refers to specific local holidays.

The difference between bank holidays and common law
public holidays is academic. In practice, they operate in largely the same way.

Bank holidays are a devolved issue in Scotland, enabling, in 2007, the creation of a ninth bank holiday (St Andrew’s Day). Northern Ireland has a proclaimed a bank holiday to mark the Battle of Boyne, in addition to St Patrick’s Day which is listed in the 1971 Act.

How can bank holidays be changed?

Bank holidays can be changed by Royal Proclamation. If
a bank holiday is set by the legislation, the Queen can proclaim that it will
be changed to a different day. If it is a bank holiday that is already made by proclamation
each year, the Queen can simply proclaim it on a different day. The Queen can
also proclaim extra bank holidays, most recently done in 2012 to mark the
Diamond Jubilee.

By convention the Queen acts on the advice of Ministers.
The Department of Business, Energy and Industrial Strategy (BEIS) is the
Government department responsible for bank holidays.

The proclamations moving the Early May bank holiday in 2020 were published in the London, Edinburgh and Belfast Gazettes on 12 July.

The last time the Early May bank holiday was moved was in 1995, when it was moved from the first to the second Monday of May. This was to mark the 50th anniversary of VE Day.

What has the reaction been?

The change of the bank holiday was debated in the House of Commons on 18 June in an adjournment debate started by by Derek Thomas MP. While MPs expressed support for a bank holiday to mark VE Day, many raised concerns about the short notice and the impact this could have for businesses and constituents. Others asked why an additional bank holiday was not created.

Andrew Stephenson MP, the Parliamentary Under-Secretary of State for BEIS, stated that while the Government recognised there would be an impact on certain sectors, it estimated that the cost would be low. By contrast, he argued that creating an additional bank holiday would have a significant economic impact.

Are bank holidays actually holidays?

There is no statutory right to a day off work specifically on bank holidays, although most workers do get one. While there is a statutory right to 5.6 weeks of annual leave, the law does not specify dates on which this must be taken.

Arrangements for bank holidays will usually be set out
in the employment contract. In addition, all employees (and workers from 6
April 2020) must be given a written statement by their employer setting out the
terms and conditions of their employment, including those concerning holidays.

Some workers will have a contract that provide for 5.6 weeks of leave, including bank holidays. In 2007, the Blair Government legislated to increase the statutory leave entitlement by 1.6 weeks (from 20 to 28 days for full-time workers), precisely because many employers were doing this. Some workers will have a contractual right to 5.6 weeks leave plus bank holidays. Others may be required to work on bank holidays and take their 5.6 weeks of leave on other days. Contracts that refer to ‘bank holidays’ should define the term, indicating whether it includes public holidays and whether it covers additional bank holidays or just the ‘usual eight’.

If there is no written contract, arrangements for time off will depend on a verbal agreements or industry custom.